since that period, and is expressly recognised by Buller, J., in Robertson v. Ewer. (a) The facts of that case did not indeed require the doctrine, which is merely assumed in the argument of that learned Judge to illustrate his opinion on the case then before the Court. Mr. Maule, therefore, urged that the law rested on a single decision of Lord Mansfield at Nisi Prius; but when we consider the high authority of that great master of insurance law, that, that case was unquestioned,—that it received the sanction of so eminent a lawyer, who treats it as clear enough to lay the foundation of a principle from analogy; when it is fully adopted in the works of distinguished writers on the subject; and above all, when we find no trace of even a claim being set up inconsistent with it for nearly seventy years, though events must have afforded the opportunity many thousand of times, we think this point must be regarded as fully established, and that we should not be justified in casting any doubt upon it. The second point appears to be entirely new, which circumstance is not so strong an argument against it as against the former claim, because the event is likely to have been of much less frequent occurrence. But if we look for the principle on which Fletcher v. Poole was decided, it must obviously be that well-known maxim of our law, in jure non remota causa sed proxima spectatur. It were infinite,' says Bacon (b),' for the law to judge the causes of causes; therefore, it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any farther degree.' Such must be understood to be the mutual intention of the parties to such contracts. Then how stands the fact? The ship insured is driven against another by stress of weather; the injury which she thus sustains is admitted to be direct, and the underwriters are liable for it. But the collision causes the ship insured to do some damage to the other vessel; and whenever this effect is produced, both vessels being in fault, a positive rule of the (b) Maxims of the Law, p. 35. Law Tracts.

(a) Ante, p. 90.

Court of Admiralty requires the damage done to both ships to be added together, and the combined amount to be equally divided between the owners of the two. It turns out that the ship insured has done more damage than she has received, and is obliged to pay the owners of the other ship to some amount under the rule of the Court of Admiralty. But this is neither a necessary nor proximate effect of the perils of the sea, it grows out of an arbitrary provision in the law of nations, from views of general expediency, not as dictated by natural justice, nor (possibly) quite consistent with it; and can no more be charged on the underwriters than a penalty incurred by contravention of the revenue laws of any particular state, which was rendered inevitable by the perils insured against. We think, therefore, that no rule ought to be granted." Rule refused.

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is applied to the ship in the policy.

good" which

Having now considered the law relating to what can or what cannot be recovered from the underwriters on a policy on " the body, &c. of the ship :" we are now to consider, secondly, what is meant by the application of the term " good," which is used 2. The term in the policy with regard to the ship, which is to be the "subject of insurance," either itself, or which is to carry the goods which are to be the subject-matter. This term, as applying to the ship itself, can mean nothing more or less than the allegation that the ship (to be insured) is good enough, (that is to say of sufficient strength, stability and excellence in its construction and condition at the time when the risk of the underwriters is to commence upon it); and that it is in fact good and capable enough to perform the voyage intended, (reserving the possibility of the losses which must happen in consequence of the perils which the underwriters take upon themselves). This term "good" is, in the phraseology of mercantile and nautical affairs, included in what the law means, when it is called the "seaworthiness of a vessel," and which we shall have occasion more particularly to specify in what it consists. It may, however, be prefaced, by saying, that as this declaration comes early in the body of the

There is an implied agreement on the part of the assured, that the ship shall be in a proper

state and con

dition to perform the

policy, so is it of the first importance, and of the essence of this contract," that the vessel in question shall be at the time of executing the policy, or at least at the moment of the commencement of the underwriter's risk "good," that is," seaworthy" for the "voyage insured.”

I shall first mention some authorities to shew how strongly voyage insured. the Judges have always spoken when the question of the "seaworthiness" of the ship at the time of the insurance has come into controversy. In the case of Carter v. Boehm (a), which was decided in Easter Term, 1766, Lord Mansfield, in discoursing upon the case then before him, affirms the law respecting the necessity of a ship being "seaworthy" when she is insured: for he says, "The utmost that can be contended for is, that the underwriters trusted that the fort being in the condition in which it ought to be; in like manner as it is taken for granted that a ship insured is 'seaworthy."" And again, his Lordship, in a later case, where the same principle was much relied on, said, "By an implied warranty every ship insured must be tight, staunch and strong: but it is sufficient if she be so at the time of her sailing. She may cease She may cease to be so in twenty hours after her departure, and yet the underwriter will continue liable" (b).

By an implied

warranty every ship insured must be tight, staunch, and strong.

The case of the Mills Frigate.

The late Mr. J. Park, in his treatise (c), says, "that the most material case (at the time he wrote) on this part of our subject was that of the Mills Frigate, which underwent a variety of discussion in several Courts, and in which all the principles on which this doctrine is founded were fully discussed." I shall take the liberty to copy what is said of this case from the learned Judge's treatise. He says:— 66 I have used my utmost endeavours to procure a copy of the opinions of the Judges upon that case, but they have been ineffectual; therefore the reader must be satisfied with a full statement

of the circumstances, as they appeared upon the demurrer to the evidence (a).

"This was an action on a policy of insurance, lost or not lost, at and from the Leeward Islands to London, warranted to sail on or before the 26th of July, upon any kind of goods, wares, and merchandises; and also upon the body, tackle, &c. of and in the good ship or vessel called the Mills Frigate, beginning the adventure on the goods from the loading thereof on board the said ship at St. Kitt's, and upon the ship from her arrival at the Leeward Islands. The defendant undertakes to indemnify against the usual risks for a premium of 21. 10s. per cent. The loss was described in the first count of the declaration, in these words:- That the said ship, after her departure from Nevis on her voyage, and during her said voyage, sailing and proceeding on the high seas by and through the force of winds and tempestuous weather, and by and through the mere perils and dangers of the seas, sprang divers leaks, and became very leaky, crippled, bulged, disjointed, split, and wholly lost.' In the second count the loss is alleged thus:- By and through the mere perils and dangers of the seas, and by the starting and loosening of one or more plank or planks of the said ship, and by accidentally springing one or more leak or leaks, the said ship became very leaky, crippled, &c., and totally unable to proceed on or perform the said voyage.' There were two other counts in the declaration upon a policy on freight, to recover from the underwriter the amount of his insurance upon that also; and a fifth count for money, had and received to the plaintiff's use. The defendant pleaded the general issue, and paid the premiums into Court.

"This cause came on to be tried before Lord Chief Baron

(a) Mills and another v. Roebuck, in the Exchequer. Before this action in the Exchequer was brought, an action upon the same policy had had been tried in the Court of Common Pleas before Lord Camden, who directed the jury to find for

H

the plaintiff. But upon a motion for a new trial, he altered his opinion, and the Court unanimously determined that the ship, not being seaworthy, the plaintiffs, however innocent they might be, could not

recover.

Parker, and the defendant demurred to the evidence produced on the part of the plaintiff. The demurrer follows in these words: Thereupon the said John and Thomas Mills (the plaintiffs) show in evidence to the jury to prove and maintain the issue within-mentioned on their part, to wit, that the defendant underwrote the policy of insurance, and that the plaintiffs were interested to the amount as in the declaration is mentioned: that the ship in question was a Frenchbuilt ship, and known to be so to the defendant at the time he underwrote the said policy: that the timbers of French ships are usually fastened with iron bolts or spikes, which are liable to grow rusty: and when the same are grown rusty the timbers of such ships frequently become loose at once, and the ships are rendered incapable of bearing the sea, without any perceptible symptoms of decay: that the ship in question was purchased by the plaintiffs in the year 1757: that since that time she has been generally employed by the plaintiffs, who are West India merchants, in that trade; and large sums have consequently been insured on her and her cargoes; that in February, 1764, being bound to the Leeward Islands, and back again to London, she sailed on her voyage; that before she sailed from London on that voyage, the plaintiffs ordered the captain to have everything done to the ship which he should think proper to repair her; that in pursuance of such orders, the ship was put into dock and repaired, where the ship-carpenter did all such repairs to her as he was ordered, the expenses of which amounted to about 100%, of which about 30%. was for the sheathing and other repairs of her hull, and the residue in her upper works: that nothing more appeared to the ship-carpenter or the captain to be wanting to make her fit and complete for the said voyage; but her iron bolts and spikes were not then examined, which could not be done without taking off her sheathing—an act never done where (as the case is here) the ship had been sheathed a little time before: that George Hayley, Esq., the first underwriter in this policy, and many other persons by whom policies of insurance are generally underwritten, keep